district court with jurisdiction, whether it is sufficient to accomplish any other purpose or not. As the undertaking does not express a condition that it is given to stay proceedings, it would be unwarranted to read such a condition into the bond when so to do would destroy its effect." The question of the stay of proceedings is not before us at this time, and it is not necessary for us to dwell upon that phase of the statute Hansen v. Anderson, 21 Utah. 286, 61 Pac. 219; Edwards v. Superior Ct. 159 Cal. 710, 115 Pac. 649; State ex rel. Jones v. Brown, 30 Nev. 495, 98 Pac. 871. From the foregoing it follows that the district court, and Judge L. N. French presiding, erroneously devested itself of jurisdiction, and the writ prayed for should issue, and it is therefore ordered that a peremptory writ issue out of this court, directing the Sixth Judicial District Court of the State of Nevada, and Judge L. N. French presiding in this case, to take cognizance and jurisdiction of said cause, and to proceed to try and determine the same on its merits. Talbot, Ch. J., concurs. I concur in the opinion and order of my learned associate. However, However, as the decision in this case reverses a number of former decisions of this court, I feel that the question is deserving of some further comment. This court in a number of cases has had occasion to say, as other courts have said, that where a question of law has once been determined, the ruling thereon should not be changed, except for very weighty and conclusive reasons. Especially is this true where the decision has repeatedly been followed. This rule applies with particular force to decisions upon mere questions of practice. Reese, Gold & S. Min. Co. v. Rye Patch Consol. Mill. & Min. Co. 15 Nev. 341; State ex rel. Jones v. Brown, 30 Nev. 495, 98 Pac. 871. The question of the power of a district court to dismiss an appeal regularly taken is something more than a question of practice. It is a question of fundamental law. Some extended examination into the decisions of the courts of the various states which have had occasion to consider the question discloses that it has been found to be one that has given rise to much difference of opinion. Not only have the courts of one state disagreed with the courts of another state upon the question, but the opinions of the same court have varied. Particularly has this been the case in our sister jurisdiction of California. In People ex rel. Wheaton v. Weston, 28 Cal. 639, the court, by Sawyer, J., in denying a writ of mandamus, held that a dismissal of an appeal from a justice's court was a judicial act within the jurisdiction of the county court, and "its determination, though erroneous, is final." In Lewis v. Barclay, 35 Cal. 214, the same question was involved and the ruling the same. See also Beguhl v. Swan, 39 Cal. 411. In Levy v. Superior Ct. 66 Cal. 292, 5 Pac. 353, Hall v. Superior Ct. 68 Cal. 24, 8 Pac. 509, and Carlson v. Superior Ct. 70 Cal. 628, 11 Pac. 788, it was held that the superior court could not devest itself of jurisdiction by the erroneous dismissal of an appeal from a justice's court. These latter cases were all reversed by the case by Buckley v. Superior Ct. 96 Cal. 119, 31 Pac. 8. decided by a divided court. In the case of Golden Gate Tile Co. v. Superior Ct. 159 Cal. 474, 114 Pac. 978, the Buckley Case was reversed. The overruling of the Buckley Case has been emphasized by the case of Edwards v. Superior Ct. 159 Cal. 710, 115 Pac. 649, and a number of other decisions by the supreme court and court of appeals of California. We may, I think, safely conclude that our sister jurisdiction has finally settled the question to its satisfaction. The supreme court of Utah, by a divided court, in the case of Crooks v. Fourth Judicial Dist. Ct. 21 Utah, (36 Nev. 349, 135 Pac. 928.) 98, 59 Pac. 529, followed the Buckley Case in 96 Cal., but in the more recent case of H. L. Griffin Co. v. Howell, 38 Utah, 357, 113 Pac. 326, it is held that "a court, having conferred upon it jurisdiction, may not devest itself of jurisdiction not depending upon facts, by an erroneous decision on matters of law that it has no jurisdiction." Mandamus was accordingly issued to reinstate an appeal, erroneously dismissed, and to proceed with the cause. The supreme court of Montana in State ex rel. King v. District Ct. 24 Mont. 494, 498, 62 Pac. 820, also followed the Buckley Case, but in both prior and subsequent decisions that court has held that mandamus will lie to compel a district court to proceed and try a case, where it has refused to take cognizance of the same, under a mistaken view that it was without jurisdiction. State ex rel. Happel v. District Ct. 38 Mont. 166, 35 L.R.A. (N.S.) 1098, 129 Am. St. Rep. 636, 99 Pac. 291. In State ex rel. Bayha v. Philips, (State ex rel. Bayha v. Kansas City Ct. of Appeals) 97 Mo. 331, 3 L.R.A. 476, 10 S. W. 855, decided in 1888, the court says: "The same diversity of opinion as to when the action of the lower courts, in dismissing appeals, can be corrected by mandamus, is exhibited in England as in this country. These numerous citations of authorities have been made as showing that the rule of law is by no means well settled that the improper dismissal of an appeal cannot be remedied by mandamus." The courts have universally held that a mere refusal of an inferior court to proceed with the trial of a case, because of an erroneous view that it was without jurisdiction, could be remedied by mandamus, and the court compelled to proceed with the trial. Such was the ruling of this court in Cavanaugh v. Wright, 2 Nev. 166, and in Floral Springs Water Co. v. Rives, 14 Nev. 431. The opinion in the latter case was by Chief Justice Beatty, now holding the same high position in the supreme court of California. Justice Beatty, both as a member of this court and as a member of the California court, has always held to the position that the dismissal of an appeal regularly taken from a justice's court was not a judicial act within the jurisdiction of the court, and hence not subject to review; but amounted to nothing more nor less than an attempted abdication of a jurisdiction which the court is bound, in every proper case, to exercise. Edwards v. Superior Ct. su pra. In the Floral Springs Case, supra, relative to the cases of State ex rel. Treadway v. Wright, 4 Nev. 119, and Cavanaugh v. Wright, supra, Beatty, Ch. J., said: "The decision in State ex rel. Treadway v. Wright, supra, does not overrule that in Cavanaugh v. Wright, and if it be true that the distinction which it attempts to draw between the two cases is without any substance or validity, what follows is that the latter and not the former decision is wrong." Hawley, J., however, in his concurring opinion, expressed the view that both the Cavanaugh and Treadway opinions were correctly decided. When the case of Andrews v. Cook, 28 Nev. 265, 81 Pac. 303, was before this court, we were asked to grant the writ upon the authority of the cases in the 66, 68, and 70 California Reports, cited supra, but upon examination we found those authorities all to have been overruled by the Buckley Case in 96 Cal., which case was in line with certain prior decisions of this court, particularly State ex rel. Treadway v. Wright, supra. The decision in the Andrews Case has been repeatedly affirmed, but, until the present case, we have not been asked to reconsider the basic question upon which those decisions rest. The difference in the conclusions reached in the various opinions depends entirely upon the assumption which forms the premise of the opinions in question. If it is assumed that a dismissal of an appeal, regularly taken, is a judicial act within the jurisdiction of the court, the conclusion logically follows that the determination of the court is final, notwithstanding such determination is erroneous as a matter of law. Upon the other hand, if it is assumed that, when jurisdiction to proceed and determine a cause is once properly vested in a court, it is without power to devest itself of such jurisdiction, the conclusion likewise logically follows that an order, erroneously made, dismissing such an appeal, is void, and amounts to no more than a refusal to regularly proceed and determine the cause. The question then resolves itself down to what is meant by appellate jurisdiction or "final appellate jurisdiction," as that term is used relative to district courts in our Constitution. Jurisdiction has been defined in general terms as "the authority or power which a man hath to do justice in cause of complaint brought before him; the power of hearing and determining causes and of doing justice in matters of complaint." 24 Cyc. 375. It has also been defined as "the power and authority to declare the law; the right of administering justice through the laws." "The term imports authority to expound or apply the laws, and excludes the idea of power to make the laws." 11 Cyc. 659, 660. V. Many similar definitions have been given. In Kavanaugh Wright, supra, this court said: "We think, as used in the Constitution, the phrase, 'appellate jurisdiction,' was intended to confer jurisdiction upon the district courts to hear cases on appeal, either in the strictest sense, which would require a trial de novo, or to review them as law cases are reviewed at common law." When an appeal from a justice's court is taken as the law prescribes, the district court is invested with jurisdiction to proceed and determine the cause upon the issues made by the pleadings. Upon this point there can be no question. But has the district court also jurisdiction, where no question of fact is involved, to say that it has not jurisdiction when it has, and to dismiss the appeal? If it has such power, it can destroy the very purpose for which it was created. Jurisdiction is always a matter of law. It may depend on a certain state of facts, but it is the law that flows from such facts which establishes the jurisdiction. It is never a matter of discretion for a court to follow the law or not as it sees fit. It is ever the duty of courts to apply the law. Necessarily, every act of a court, to be of any binding force, must depend upon jurisdiction, and courts, of necessity, must determine questions of jurisdiction, but a determination that jurisdiction exists when, as a matter of law, it does not exist, does not ipso facto establish such jurisdiction. As we said in the recent case of Gamble v. Hanchett, 35 Nev. 326, 133 Pac. 936: "It is a primal duty of all courts to keep within their jurisdiction. Whenever a court takes any affirmative action, there is an implied adjudication that it has jurisdiction." Without conflict of authority, it is settled that when an inferior court erroneously determines that it has jurisdiction, its judgments and orders will be set aside by the higher courts. What reason exists for saying that if a court erroneously decides that it has not jurisdiction when it has, and dismisses an appeal for that reason, such decision cannot be disturbed; in other words, for saying that the converse of the rule has no application? The reason given is that the appellate court has jurisdiction of the case for all purposes, and therefore may dispose of the case by an order of dismissal if in its judgment it is without jurisdiction. The fallacy of this reasoning, I am convinced, lies in the assumption that the appellate court has jurisdiction for all purposes when the Constitution and statute prescribe that, if an appeal is properly perfected, it has jurisdiction (36 Nov. 349, 135 Pac. 922.) only to determine the questions of law or fact involved in the pleadings or record on appeal. Hence justification exists for making no distinction between a mere refusal to proceed with the trial of a case for an erroneous assumption of want of jurisdiction and the dismissal of a case for the same erroneous reason. In other words, a court is without power to invest itself with a jurisdiction it does not possess, or to devest itself of a jurisdiction it does possess. Petition for rehearing denied. ANNOTATION. Mandamus to compel a court to reinstate or proceed with the hearing of an appeal that it has erroneously dismissed. I. General rule, 655. II. Where appeal was dismissed on ground of lack of jurisdiction, 657. III. Mandamus denied, 659. On mandamus to compel a court to assume or exercise jurisdiction where it has erroneously dismissed the cause or refused to proceed on the ground of supposed lack of jurisdiction, see note to State ex rel. Martin v. Superior Ct. ante, 582. On mandamus to compel court to take jurisdiction of a cause that it has erroneously dismissed for supposed insufficiency of service, see note to Speckert v. Ray, ante, 610. On inadequacy of remedy by appeal or writ of error as affecting right to mandamus to inferior court, see note to Ketchum Coal Co. v. District Ct. ante, 619. 1. General rule. Where a court has devested itself of jurisdiction of a cause by erroneously dismissing an appeal, the ground for the dismissal is in many cases the court's belief or decision that it has no jurisdiction. Where this is the ground for the erroneous action of the court, the case falls within the scope of the annotation to State ex rel. Martin v. Superior Ct. above referred to. Many such cases are there cited to the general proposition that mandamus will lie to compel a court to take or proceed to exercise jurisdiction when it has refused to do so on the ground that it has no jurisdiction. They are cited in the present note for their specific application of the general rule to dismissals of appeals. There are, however, other cases in which appeals have been erroneously dismissed on other grounds than that of supposed lack of jurisdiction. Some of these cases are also cited herein. Mandamus has frequently been refused on the ground that the petitioner had the right to appeal from the decision dismissing his appeal. Cases like State ex rel. Grunewald v. Judges of Ct. of Appeals (1901) 105 La. 217, 29 So. 816, where mandamus was refused because the inferior court may have been correct in its reason for dismissing the appeal, are not in point in the note, since the question under annotation assumes that the dismissal was erroneous. Mandamus from a higher court will lie to compel a lower court to take jurisdiction of a cause, after it has devested itself of jurisdiction by erroneously dismissing an appeal. United States.-Ex parte Parker (1887) 120 U. S. 737, 30 L. ed. 818, 7 Sup. Ct. Rep. 767; Re Parker (1889) 131 U. S. 221, 33 L. ed. 123, 9 Sup. Ct. Rep. 708. California.-Acker v. Superior Ct. (1885) 68 Cal. 245, 9 Pac. 109, 10 Pac. 416; Golden Gate Tile Co. v. Superior Ct. (1911) 159 Cal. 474, 114 Pac. 978; Peacock v. Superior Ct. (1912) 163 Cal. 701, 126 Pac. 976; Blake v. Superior Ct. (1911) 17 Cal. App. 51, 118 Pac. 448; Widrin v. Superior Ct. (1911) 17 Cal. App. 93, 118 Pac. 550. Florida. Ex parte Henderson (1855) 6 Fla. 279; Anderson v. Brown (1855) 6 Fla. 299; State ex rel. Duke v. Wills (1905) 49 Fla. 380, 38 So. 289; State ex rel. Hopps v. Horne (1918) – Fla., 77 So. 672. Louisiana.-State ex rel. Sorrel v. Foster (1902) 106 La. 425, 31 So. 57; Bain v. Oliphant (1909) 124 La. 583, 50 So. 588; State ex rel. Lacaze v. Judges of Ct. of Appeals (1890) 42 La. Ann. 1087, 8 So. 267; State ex rel. Beauvais v. Judges of Fifth Circuit Ct. of Appeals (1896) 48 La. Ann. 672, 19 So. 617. Michigan. People ex rel. Comstock v. Judge of Wayne Circuit Ct. (1874) 30 Mich. 98; Cheever v. Circuit Judge (1880) 45 Mich. 6, 7 N. W. 186; American Boat Co. v. St. Clair Circuit Judge (1916) 194 Mich. 146, 160 N. E. 396 (rule not applied). Missouri.-State ex rel. Bayha v. Philips (State ex rel. Bayha v. Kansas City Ct. of Appeals) (1888) 97 Mo. 331, 3 L.R.A. 476, 10 S. W. 855; State ex rel. Chicago, R. I. & P. R. Co. v. Smith (1903) 172 Mo. 446, 72 S. W. 692; State ex rel. Stanberry v. Smith (1903) 172 Mo. 618, 73 S. W. 134; State ex rel. Title Guaranty & T. Co. v. Broaddus (1908) 210 Mo. 1, 108 S. W. 544; State ex rel. Caulfield v. Broaddus (1911) 234 Mo. 331, 137 S. W. 271; State ex rel. Modern Woodmen v. Broaddus (1912) 239 Mo. 359, 143 S. W. 455. Montana.-State ex rel. Kellogg v. District Ct. (1893) 13 Mont. 370, 34 Pac. 298. Nevada. Cavanaugh v. Wright (1866) 2 Nev. 166 (see holding, stated infra); Floral Springs Water Co. v. Rives (1880) 14 Nev. 431. Sussex New Jersey.-Strader v. County (1836) 15 N. J. L. 433; Dyer v. Ludlum (1838) 16 N. J. L. 531; Case v. Rowland (1839) 17 N. J. L. 76; Adams v. Mathis (1841) 18 N. J. L. 310; State, Snover, Prosecutor, v. Tinsman (1875) 38 N. J. L. 210 (arguendo). Philippine.-Babasa v. Linebarger (1908) 12 Philippine, 766. Utah.-Hoffman v. Lewis (1906) 31 Utah, 179, 87 Pac. 167 (rule not applied); Christensen v. Christensen, ante, 641. Washington.-State ex rel. Maltby v. Superior Ct. (1893) 7 Wash. 223, 34 Pac. 922. England.-Rex v. Justices of Wilts (1828) 8 Barn. & C. 380, 108 Eng. Reprint, 1084, 6 L. J. Mag. Cas. 97, 2 Mann & R. 401; Rex v. Justice of Wiltshire (1801) 1 East, 683, 102 Eng. Reprint, 264; Reg. v. Justices of Carnarvonshire (1841) 1 Cale & D. 423. Canada. Reg. v. Smith (1874) 35 U. C. Q. B. 518. And the writ will lie where the court strikes a demurrer from the files under the erroneous belief that a demurrer is not allowable in quo warranto proceedings. State ex rel. Union Electric Light & P. Co. v. Grimm (1909) 220 Mo. 483, 119 S. W. 626. In State ex rel. Chicago, R. I. & P. R. Co. v. Smith (1903) 172 Mo. 446, 72 S. W. 692, the court said: "The case in question is within the exclusive appellate jurisdiction of the Kansas city court of appeals. From its judicial determination thereof no appeal lies to this court, and the writ of mandamus cannot be made to perform the functions of an appeal. Nevertheless, the Constitution provides that this court 'shall have superintending control over the courts of appeals by mandamus.' [Const. 1884, § 8, as amended; 1 Rev. Stat. 1899, p. 94.] And while, under the power conferred on this court by this constitutional provision, the jurisdiction of the court of appeals to hear and determine the case cannot be invaded, yet the provision does confer the power and afford the means by which this court may compel that court to exercise its jurisdiction. To the end that it might properly do so, the court of appeals, in pursuance of the statute authorizing it thereto, adopted and promulgated certain rules for the presentation of causes in that court for its hearing and determination. As we have seen, the relator, in compliance with the statute and these rules, thus presented its case to that court for its hearing and determination. But the court of appeals, owing to an erroneous construction of its rules, refused to hear and determine the cause thus presented, and dismissed the appeal. Thereupon, the relator invokes the exercise of the constitutional power of this court by its writ of mandamus, not to invade the jurisdiction of the court of appeals, but to compel that court to exercise its jurisdiction by hearing and |